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finding the sexual nature of hand to genital contacts occurring in bed at nighttime could not be disputed if the child was believed
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No. 1-960 / 01-0452.
Filed April 24, 2002.
Appeal from the Iowa District Court for Warren County, DARRELL J. GOODHUE, Judge.
Michael Smothers appeals from the district court ruling denying his application for postconviction relief. AFFIRMED.
Unes J. Booth of Booth Law Firm, Osceola, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Kevin Parker, County Attorney, and Patricia Notch, Assistance County Attorney, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Michael Smothers appeals from the district court ruling denying his application for postconviction relief. We affirm.
I. Background Facts and Proceedings.
Smothers was charged with two counts of second-degree sexual abuse in violation of Iowa Code section 709.3(2) (1995) and two counts of indecent contact with a child in violation of section 709.12. The charges stemmed from allegations Smothers inappropriately touched his two young stepdaughters and one of her friends. Smothers was acquitted of one count of sexual abuse and the indecent contact charges, but was convicted of sexually abusing his stepdaughter A.F. We affirmed Smothers's conviction and sentence on direct appeal. See State v. Smothers, No. 08-0191 (Iowa Ct.App. June 24, 1998).
Smothers filed an application for postconviction relief alleging ineffective assistance of counsel in a number of respects. The district court denied his application. On appeal, Smothers contends his trial counsel was ineffective in (1) failing to exclude or adequately remedy a false statement by A.F. regarding her age which permitted the jury to convict him of alleged acts which may have occurred after the victim's twelfth birthday and (2) failing to request a "sexual nature" jury instruction in light of State v. Monk, 514 N.W.2d 448 (Iowa 1994). Smothers further alleges the cumulative effect of these errors denied him a fair trial.
II. Standard of Review.
Generally, the scope of review in postconviction cases is for correction of errors of law. Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999). However, when the applicant asserts claims of a constitutional nature, such as ineffective assistance of counsel, our review is de novo. Id.
III. Ineffective Assistance of Counsel.
In order to prevail upon a claim of ineffective assistance of counsel, a defendant must demonstrate (1) counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Bugely, 562 N.W.2d at 178. "Both elements must be proven by a preponderance of the evidence." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted).
To establish deficient performance, "[t]he test is `whether under the entire record and totality of the circumstances counsel's performance was within the normal range of competence.'" State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (quoting Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)). "A defendant is not entitled to perfect representation, rather representation which is within the normal range of competency." Id.
The defendant must also demonstrate the error caused prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697. To meet this burden, the defendant must prove "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability is one sufficient to undermine confidence in the outcome. Id.; State v. Carrillo, 597 N.W.2d 497, 500 (Iowa 1999). An ineffective assistance of counsel claim will fail if the defendant is unable to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
The State correctly notes Smothers did not raise his first assignment of error regarding A.F.'s age in his direct appeal. Typically, a claim not raised on direct appeal cannot be raised in a postconviction relief proceeding unless the applicant can demonstrate a sufficient cause or reason for not properly raising the issue previously. Iowa Code § 822.8 (1995); Ledezma, 626 N.W.2d at 141 (citations omitted). The applicant must also prove he was actually prejudiced by the alleged error. Id.
Our supreme court has previously determined ineffective assistance of appellate counsel can constitute a sufficient reason for failing to raise the issue of ineffective assistance of trial counsel on direct appeal. Id. We utilize the same two-part test to determine ineffective assistance of appellate counsel as we do to judge ineffective assistance of trial counsel. Ledezma, 626 N.W.2d at 141. To prove appellate counsel's deficient performance resulted in prejudice, the applicant must show his ineffective assistance of trial counsel claim would have prevailed if it had been raised on direct appeal. Id. Therefore, before we can determine whether error has been preserved, we must first analyze the merits of Smothers's claim of ineffective assistance of trial counsel. Id. at 141-42. If we determine Smothers cannot establish a sufficient ineffective assistance claim against his trial counsel, we need not address his ineffective assistance claims against his appellate counsel. Id. at 145.
A. A.F.'s Age.
"A person commits sexual abuse in the second degree when . . . the other person is under the age of twelve." Iowa Code § 709.3. Count I of the trial information charged Smothers with committing "sexual abuse upon A.F., a child under the age of twelve . . . on or about the 30th day of September, 1996." The charge was amended prior to trial to expand the time frame to "during 1992 to September 30, 1996." A.F. was born June 7, 1984; therefore, she was twelve between June 7, 1996 and September 30, 1996. Smothers contends, and the State concedes, any sex acts that occurred during that time period would not constitute sexual abuse in the second degree. At trial, A.F. testified to the following regarding her age:
Q: Ms. [F.], what's your date of birth?
A: June 7, 1984.
Q: How old were you on your last birthday in 1996?
A: 11
Q: And how old will you be on your birthday in 1997?
A: 13
Smothers contends his trial counsel was ineffective by failing to remedy or object to A.F.'s false statement regarding her age. Smothers further contends his trial counsel was ineffective by failing to object to the inaccurate trial information, and subsequent jury instructions, which permitted the jury to convict him of alleged acts which may have occurred after A.F.'s twelfth birthday.
1. A.F.'s Testimony.
Smothers argues the State committed prosecutorial misconduct by utilizing A.F.'s false testimony that she was eleven on her last birthday, when in fact she was twelve. In order to prevail on this ground, the defendant must prove:
(1) that the prosecution either introduced or failed to correct false testimony; (2) that the false or perjured testimony was given at trial; (3) that the prosecution knew the perjured testimony was false; (4) that the testimony was "material;" and (5) that the defendant has not waived the claim by failing to raise it at trial if he had reason to know of the falsity of the subject testimony.Jones v. State, 479 N.W.2d 265, 275 (Iowa 1991).
The State correctly notes Smothers cannot satisfy prongs one and five. The district court correctly noted A.F.'s statement she was eleven on her last birthday, although inaccurate, was clearly a result of misapprehension of the question. Any harm from her statement was mitigated by the fact that she correctly stated her date of her birth and testified she would be thirteen on her next birthday. Moreover, Smothers, who should have been aware of his stepdaughter's age on her last birthday, failed to correct A.F.'s testimony and therefore waived his claim.
Furthermore, we find Smothers cannot establish he was prejudiced by trial counsel's failure to object to A.F.'s testimony. The evidence at trial established that a large majority of the sexual abuse occurred well before A.F.'s twelfth birthday. A.F. testified Smothers touched her genitals on several occasions throughout the second and third grade. A.F. mentioned only one specific incident which occurred after her twelfth birthday. We affirm the postconviction court on this issue.
2. Inaccurate Trial Information and Jury Instructions.
Smothers argues his trial counsel was ineffective in failing to remedy the dates in the trial information and jury instructions which extended beyond A.F.'s twelfth birthday. We disagree. The district court properly determined Smothers cannot prove he was prejudiced by trial counsel's failure to act. The jury was instructed with regards to the victim's age. Furthermore, we have held:
Jury Instruction No. 12 provided in relevant part:
1. During the time period from the year 1992 to September 30, 1996, the defendant performed a sex act with A.F.
2. The defendant performed the sex act while A.F. was under the age of 12 years.
Jury Instruction No. 15 provided: "[c]oncerning element number 2 of Instruction No. 12, the State must prove that A.F. was under the age of 12 at the time of the defendant's act."
The date fixed in the indictment or information for the commission of a crime is not material, and a conviction can be returned upon any date within the statute of limitations, absent a fatal variance between the allegations and proof.State v. Brown, 400 N.W.2d 74, 77 (Iowa Ct.App. 1986) ; see also State v. Laffey, 600 N.W.2d 57, 60 (Iowa 1999) (rejecting defendant's argument that the confusion among witnesses as to when the incident occurred fatally undermined the jury's finding of guilt); State v. Rankin, 181 N.W.2d 169, 172 (Iowa 1970) (stating that State is not required to prove the exact date of a sexual offense); State v. Griffin, 386 N.W.2d 529, 532 (Iowa Ct.App. 1986) (holding statute defining crime of second-degree sexual abuse "does not make a particular time period a material element of the offense"). We find any variance in the dates of the trial information and jury instructions was not fatal because it was possible for the jury to convict Smothers of second-degree sexual abuse. A.F. testified Smothers touched her genitals on several occasions while she was eight and nine years old. Accordingly, we affirm on this issue.
B. "Sexual Nature" Jury Instruction.
Smothers further alleges his trial counsel was ineffective by failing to request a "sexual nature" jury instruction as required by State v. Monk, 514 N.W.2d 448 (Iowa 1994). Smothers argues the district court instructed the jury on the definition of a sex act, but failed to include the following language: "[y]ou may consider the type of contact and the circumstances surrounding it in deciding whether the contact was sexual in nature." Smothers contends with proper instruction, the jury could have determined the physical contact between him and A.F. was not sexual in nature.
Jury instruction No. 14 provided in pertinent part: "`sex act' means . . . [c]ontact between the finger or hand of one person and the genitals or anus of another person."
In Monk, our supreme court held that in sexual abuse cases, the contact between specified body parts or substitutes thereof must be sexual in nature. Monk, 514 N.W.2d at 450. The contact at issue in Monk involved the defendant inserting a broomstick into the victim's anus. Id. at 449. The court found "[i]n most cases the sexual nature of the contact is undisputed. However, in this case there is substantial evidence to support a finding that the contact with [the victim] was not sexual in nature." Id. at 451. The court found the district court erred by failing to instruct the jury that a sex act requires sexual contact. Id.
We find Smothers cannot prove the prejudice prong of the Strickland test. We agree with the district court that the facts of this case fit into the "most cases" category referred to in Monk. A.F.'s testimony at trial clearly indicated the sexual nature of the contact. A.F. testified Smothers touched her genitals on several occasions and forced her to touch his penis. A.F. further testified these hand to genital contacts occurred at nighttime while she was in bed. If the jury believed A.F.'s testimony, the sexual nature of these contacts cannot be disputed. We affirm the postconviction court on this issue.
C. Cumulative Error.
Additionally, Smothers claims, if insufficient individually, the cumulative effect of the errors was so prejudicial that it denied him a fair and impartial trial, as well as effective assistance of counsel. We conclude Smothers received effective assistance of counsel. Accordingly, we find there was no cumulative error.
IV. Conclusion.
We have considered all the claims raised by Smothers in support of his application for postconviction relief. We conclude Smothers was not denied his constitutional right to effective assistance of counsel on these issues. Because we have determined Smothers failed to prove he received ineffective assistance from his trial counsel, we need not address his ineffective assistance of appellate counsel claims. Ledezma, 626 N.W.2d at 145. We affirm the district court's denial of postconviction relief.
AFFIRMED.